The “Trump Wall”: Effect of New Executive Orders on Foreign Workers and Their Employers

Since taking office on January 20th, President Trump has signed, and is expected to continue to sign, multiple controversial Executive Orders relating to immigration controls and enforcement. As has been widely reported by the press, the President signed an Order yesterday instructing the Department of Homeland Security (DHS) to start building a wall along the U.S.-Mexican border, using existing government resources. A “draft” Executive Order was also leaked to the media yesterday which reveals other less literal means of wall-building currently underway. Among the immigration-related security measures, the Order would immediately suspend admissions of all refugees for at least 120 days, indefinitely ban refugees from Syria and other to-be-determined countries, reduce the total number of refugees admitted to the United States each year, suspend visa issuance to nationals of countries of “particular concern,” and immediately cancel the visa interview waiver program for all nonimmigrant visa renewals. Depending on its implementation, the Order could further suspend admission and readmissions of all foreign nationals to the United States—including permanent residents—from certain predominantly Muslim countries for at least 30 days. The President also signed an Executive Order that increases the number of border patrol and immigration enforcement personnel. This alert examines the impact of these executive actions on business immigration. Suspension of Visa Issuance & Admission of Foreign Nationals from Certain Muslim Countries Individuals from countries targeted by the draft Executive Order may be prevented from traveling internationally for two reasons: suspension of visa issuance and suspension of admission. First, the Department of State (DOS) would immediately suspend the issuance of visas to applicants from these countries; accordingly, impacted foreign nationals outside the country at the time that the Order takes effect would become ineligible to receive a visa and would thus lack the requisite documentation to be granted entry to the United States. Moreover, U.S. Customs and Border Protection (CBP) could deny admission to impacted foreign nationals even if they possess a valid visa or other travel document for at least 30 days from the date of the Order. Notably, the draft Order appears to apply not only to “nonimmigrants,” those seeking temporary admission to the U.S. such as F-1 students, H-1B workers, and tourists, but also to “immigrants,” permanent residents (green card holders) who would not otherwise be required to apply for a visa or other travel document to reenter the U.S. Targeted countries currently include Iraq, Iran, Syria, Sudan, Libya, Somalia, and Yemen, which were designated in Division O, Title II, Section 203 of the 2016 Consolidated Appropriations Act. Within 30 days of the Order, the Secretary of the DHS, in consultation with the Secretary of State and the Director of National Intelligence, would submit a report to the President on information needed from foreign governments; nationals of countries whose governments do not adequately comply could face further obstacles to visa eligibility, U.S. admission, and other immigration benefits. The Secretary of State and the Secretary of the DHS may submit to the President the names of any additional countries recommended for similar treatment. According to the draft Order, the government may make exceptions, on a case-by-case basis, regarding visa issuance and other immigration benefits to impacted foreign nationals. Suspension of Nonimmigrant Visa Interview Waivers The Visa Interview Waiver Program, which currently allows certain eligible applicants to bypass an interview with a consular officer when applying to renew an existing visa, e.g. the H-1B worker visa, would be immediately suspended. All foreign nationals seeking a nonimmigrant visa would be required to attend an in-person interview, subject to statutory exceptions. This change is expected to significantly increase wait times to schedule a visa appointment, as well as to increase processing times in the adjudication and issuance of nonimmigrant visas. Any foreign national planning to travel abroad in the near future, who does not already possess a valid nonimmigrant visa, should be prepared for potentially significant delays in their ability to return to the United States. Impact on Foreign Nationals from “Countries of Concern” Until further information becomes available, we advise foreign nationals from Iraq, Iran, Syria, Sudan, Libya, Somalia, and Yemen who are present in the United States as nonimmigrants or permanent residents not to leave the country, and contact our office about any travel that cannot be avoided. If the draft Order is signed by the President in its current form, it would take immediate effect and bar such persons from reentering. Far Reaching Impact for All Foreign Nationals Trump’s instruction to build a wall and implement other far-reaching border security and interior enforcement controls will likely divert current resources that are allocated for immigration benefits and admissions to the United States. This could result in delays in visa issuance, visa appointment scheduling, port of entry admissions, and even processing of employment-based petitions. We will provide more information as soon as it become available.

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